By Amy Yurkanin
Police arrested Ashley Banks on May 25 with a small amount of marijuana and a pistol without a permit to carry.
Under normal circumstances, the 23-year-old from Gadsden would have been able to post bond and leave jail until her criminal trial. But Banks admitted to smoking pot on the same day she found out she was pregnant – two days before her arrest. In Etowah County, that meant she couldn’t leave jail unless she entered drug rehab, leaving her in limbo for three months.
She’s not the only one, according to attorneys involved in her case. Several pregnant women and new moms accused of exposing their fetuses to drugs have been held for weeks or months inside the Etowah County Detention Center under special bond conditions that require rehab and $10,000 cash.
Attorneys with National Advocates for Pregnant Women, an organization that opposes laws that criminalize pregnancy, say it’s unfair to impose special conditions on pregnant women who haven’t been convicted of any crimes.
As a result of the policy, the Etowah County Detention Center often holds several pregnant and postpartum women in the jail, against the advice of experts on maternal and fetal health. Dr. Carolyn Sufrin, an OB/GYN and expert on incarceration and pregnancy at Johns Hopkins University School of Medicine, wrote an affidavit urging the court to release Banks.
“The stress and conditions in jail and prisons, including lack of consistent access to standard prenatal care and mental health care, poor diets, poor sanitation, infestations with bugs and vermin, poor ventilation, tension, noise, lack of privacy, lack of family and community contact, can be detrimental to physical and mental health which can result in poor pregnancy outcomes for both the mother and the baby,” Sufrin wrote.
Banks has a high-risk pregnancy due to a family history of miscarriage. She said she was jailed at around six weeks of pregnancy. About six weeks into her incarceration, she started bleeding and was taken to Gadsden Regional Medical Center, according to court documents. Doctors diagnosed her with a subchorionic hematoma, a condition where blood pools near the wall of the uterus.
The condition increases the chances of miscarriage and preterm delivery, according to the Cleveland Clinic. Banks said jail officials told her she could sleep on the bottom bunk because of her high-risk pregnancy. However, her cell had one bottom bunk and two women assigned to sleep in it. So, the other woman used the bed, according to court documents, and Banks slept on the floor.
She continued to bleed for five weeks in jail. She said she also suffered from hunger and fainting spells. Two times, specialists evaluated her for drug addiction and found she didn’t qualify for free addiction services offered through the state. Her lawyers said investigators then urged Banks to say she had a drug addiction she did not have to bond out.
“Ms. Banks is currently incarcerated indefinitely because the State will not accept her $10,000.00 cash bail and she does not qualify for a residential drug treatment,” her petition said.
Since her bond conditions required rehab, and since rehab wouldn’t take her, she continued sleeping on a jailhouse floor until Aug. 25, when an Etowah County judge released her to community corrections.
Chris Retan, executive director of Aletheia House, a substance abuse treatment provider, said they often have beds available for pregnant women and mothers. But he said judges should not order women into treatment if they do not have a substance use disorder.
“I would say that the appropriate thing for them to do is to go to drug treatment program that matches their level of need,” Retan said. “Residential treatment is for people with a serious disorder.”
It’s difficult to know how many pregnant women and new moms are incarcerated in the Etowah County Detention Center. Roth said she heard the number could be as high as 12 earlier in August. AL.com found seven pregnant or postpartum women in a recent investigation of the jail log who had been incarcerated at some point between April and August. A spokesman for the jail did not answer questions about the number of pregnant and postpartum women.
Emma Roth, an attorney at National Advocates for Pregnant Women, said several other women should also be released from the Etowah County Detention Center. Researchers for NAPW have tracked more than 150 chemical endangerment cases involving women in Etowah County since 2010.
Hali Burns, a mother of two, was arrested six days after the birth of her newborn son. During pregnancy Burns tested positive for methamphetamine and Subutex, a medication used to treat pregnant women with opioid use disorder.
Burns is challenging the validity of those drug tests. Her lawyers said sinus medication triggered false positive results for methamphetamine and that she had a prescription for the Subutex. Etowah County prosecutors dispute those claims, but neither a judge nor a jury has had an opportunity to examine the evidence.
Yet Burns remains in jail more than two months after she was arrested while visiting her newborn son in the NICU. Her boyfriend, Craig Battles, became emotional while talking about the toll the separation has taken on the family. He said he worries about Burns and his children.
“My little girl keeps asking what she did wrong and why she can’t come home,” Battles said.
Women who have just given birth also have special medical needs that can be difficult to meet inside a jail, experts say. Battles said he tried to deliver pads and underwear so Burns would not bleed onto her clothes but said jail staff told him the items weren’t allowed.
“When she first got in jail, she was right out of the hospital,” Battles said. “She didn’t even have panties or pads and she had just had a baby. She was stuffing paper towels or toilet paper in her pants to stop the bleeding.”
Roth said denying new moms and pregnant women a chance to go home and await trial, like other defendants, can also punish children.
“When they are kept away from newborn babies and older children, it causes trauma,” Roth said. “As a legal matter, bond is not meant to help defendants, nor is it meant to punish defendants.”
At an Aug. 18 hearing in Burns’ case, her lawyers argued that bond is only supposed to protect the public and guarantee that defendants appear at trial. Mandating rehab in these cases does not serve either purpose, said her attorney, Morgan Cunningham.
“I have reckless murder cases where defendants have been released on bond,” Cunningham said. “Requiring her to go to rehab is not Constitutional.”
Etowah County Deputy District Attorney Carol Griffith said the bond conditions protect Burns’ children from the harm caused by parental drug abuse. She pointed out that Burns had already gone through drug court and had recently failed a drug test administered inside the jail. She had been scheduled to go to rehab, but had to remain in jail after testing positive, according to court documents.
“That is further evidence that this is an individual who desperately needs the help we are offering here today,” Griffith said.
Etowah County Circuit Court Judge Sonny Steen on Aug. 19 denied the petition for Burns’ release.
“The purpose of bond in any criminal case is not only to ensure a Defendant’s appearance at trial, but also to protect the community,” Steen wrote in his order. “The court has a duty to consider the safety of the children and others within our community. It is undisputed that the petitioner needs substance abuse treatment; she would have been placed in said treatment facility on Aug. 18, 2022 but for her positive drug tests the day prior.”
Her children are currently under the supervision of the Department of Human Resources and live with a family member and would not be harmed if she was released home, said Martin Weinberg, a Birmingham attorney who also represents Burns.
Weinberg also said the availability of drugs in the jail, coupled with her sadness at being separated from her family, created a dangerous situation.
“There is a problem with the jail,” Weinberg said. “The jail is not a safe place for her.”
Dr. Hytham Imseis, a specialist in maternal-fetal medicine in North Carolina, wrote in an affidavit that the postpartum period is a critical bonding time for mothers and infants – and that separation during those weeks can have devastating consequences.
“Separation of mothers from their infants increases the risk of postpartum mental health disorders, including postpartum depression, postpartum anxiety, postpartum traumatic stress disorder and postpartum psychosis,” Imseis wrote. “Early separation of mothers from their infants also has adverse impacts on infant and child development with ramifications that stretch into adulthood. Separation can lead to lowered IQ, difficulty maintaining stable relationships, difficulty sustaining employment, and heightened risk for substance use and incarceration.”
The postpartum period lasts for six weeks after pregnancy. It’s the most critical time in the health of newborns and mothers, according to the World Health Organization, because most maternal and infant deaths happen during that time. In addition to the physical recovery from childbirth, women also experience fluctuations in hormone levels that can contribute to depression and anxiety.
Sufrin, the Johns Hopkins OB/GYN professor, has conducted research on pregnancy outcomes among incarcerated women and found that 20 percent suffer miscarriages, compared to 10 to 15 percent for the general population, according to the March of Dimes. Pre-term birth rates are also higher than the national average, Sufrin wrote.
The policy could put incarcerated pregnant women at greater risk of facing far more serious charges if something does go wrong medically. In Alabama, women can be criminally charged for miscarriage and stillbirth if they used drugs during pregnancy and face penalties of up to 99 years in prison.
The Etowah County Sheriff’s Office, which operates the jail, has a contract with local providers Doctors’ Care Physicians who staff the jail 24 hours a day, seven days a week, according to the website.
“When a chemical endangerment arrestee comes into the Etowah County Detention Center, they are evaluated by medical staff as all arrestees are,” wrote Josh Morgan, a spokesman for the sheriff’s office in an email. “Then they are referred out to obstetricians. Once appointments are made, they are escorted to the appointments by deputy sheriffs.”
Still, most medical experts advise against laws that criminalize drug use during pregnancy and the American College of Obstetricians and Gynecologists called for the release of incarcerated pregnant and postpartum women in 2021 due to the risk of COVID.
Local attorney Daniel B. King said the jail was not safe for women who are pregnant. He was recently assigned the case of a new mother accused of drug use.
“If she’s pregnant, she should definitely not be in that jail,” he said.
Brittney Pickard, who was arrested in 2021 after her newborn tested positive for marijuana, went to jail less than 10 days after giving birth. When an investigator for the Etowah County Sheriff’s Department told her she was going to jail, Pickard said she burst out crying.
“I was still going through postpartum,” Pickard said. “Still bleeding. Still had stitches down there.”
The nurses were kind, she said. But it still took almost a day to get the pads she needed for her bleeding, and she said she never received pain medication for soreness in her abdomen. They did allow her to wear shorts under her jail clothes and shower separately from the other inmates. After five days, she agreed to enter drug court instead of facing up to 10 years in prison for the felony charge.
“I didn’t feel like I had any other choice,” Pickard said.